[225 N. Y.]

Opinion, per HISCOCK, Ch. J.

[Jan.,

justified in taking an unusual step to protect his employer's interests. It was simply and solely the expression of a private desire and the consummation of a personal purpose. However natural and even commendable his act may have been it was neither beneficial to his employer nor to himself in the way of completing and performing his work.

The impulse may be, not unnaturally, to say in justification of it that an employee ought not to be compelled to stand idly at his post while waiting for work and that claimant's deviation from his proper course was only by a few feet. But these reasons will not stand analysis. So far as the first one is concerned, as has been pointed out, it would doubtless be possible for an employee temporarily out of work, and if he could do so without interfering with his duties, to seek some proper and available place for rest without destroying his relation of employee. And so far as concerns the second one, the conduct of an employee in a crowded machine shop is not to be measured by mere distances. In this case claimant went far enough to exchange a perfectly safe occupation for a condition of danger and accident. After all other considerations, the controlling and inevitable question remains whether it is part of the employment of an employee in a shop, hired to perform simple and fixed duties, to leave these and visit his fellow-workmen on errands of a purely personal character utterly unconnected with his regular duties. We think that the answer to this question is self-evident unless we are to extend the relation of employment for purposes of the Compensation Act over areas which will not only be new but difficult to define by any certain or logical boundaries.

The tests of such a claim as this were succinctly stated by Judge POUND in Matter of Heitz v. Ruppert (218 N. Y. 148, 152): "The injury must be received (1) while the workman is doing the duty he is employed to perform, and also (2) as a natural incident of the work. It must

1919.]

Opinion, per HISCOCK, Ch. J.

[225 N. Y.]

be one of the risks connected with the employment, flowing therefrom as a natural consequence and directly connected with the work."

Claimant's injury does not survive these tests and his case comes within the principles of Matter of O'Toole (118 N. E. Rep. [Sup. Judicial Court of Massachusetts] 303), where it was held that accidental death occurring to a decedent who had temporarily left his employment to talk with a fellow-employee about personal matters could not be said to have arisen out of and in the course of his employment so as to become the basis for a claim; of Reed v. Great West. Rway. Co. (78 L. J. K. B. 31), where it was held that an engine driver who had left his engine while at rest and crossed a siding to receive from a friend a book unconnected with his duties, was not so engaged in his employment that an injury then received by him would be the basis for a claim under the Compensation Act; of Bischoff v. American Car & Foundry Company (157 N. W. Rep. [Supreme Court of Michigan] 34), where it was held that an employee who transgressed his instructions in order to assist a fellowemployee in the repair of a machine could not recover compensation for an accident then arising, although the injured employee thought that his acts were for the benefit of his employer; of Smith v. Lancashire, etc., Ry. Co. (1 W. C. C. 1), where a ticket collector having finished his duties tarried on the footboard of the car for a moment to speak to a passenger and was injured; of Spooner v. Detroit Saturday Night Co. (153 N.W. Rep. [Supreme Court of Michigan] 657), where an employee who was injured while conveying some fellow-employees in an elevator to their work as a favor to them and which act was outside of his line of duty was denied workmen's compensation; of Matter of Gifford v. Patterson, Inc. (222 N. Y. 4), where it is stated that "when an employee is injured through some act of his own, not an incident to his employment,

[225 N. Y.]

*

*

and not authorized or induced by his employer in connection with his employment, the injury does not arise out of and in the course of his employment within the meaning of the Workmen's Compensation Law." We think that the order of Appellate Division and award of the industrial commission must be reversed and the claim dismissed, with costs in this court and in the Appellate Division against the industrial commission. COLLIN, CUDDEBACK, HOGAN and MCLAUGhlin, JJ., concur; CHASE and CRANE, JJ., dissent.

Order reversed, etc.

Matter of ELLEN MCINERNEY, Respondent, v. BUFFALO AND SUSQUEHANNA RAILROAD CORPORATION, Appellant. STATE INDUSTRIAL COMMISSION, Respondent.

claimant injured while

Workmen's Compensation Law walking upon tracks in railroad yard instead of adjacent and convenient highway - when accident did not arise out of and within course of employment.

The deceased for whose death compensation is claimed was in the employ of defendant as a car inspector in one of its yards; he was accustomed to go for his dinner to his home, which was not on the defendant's premises, on week days taking the highway and on Sundays walking on the defendant's right of way in order to avoid exposing himself in his working clothes to the view of people on the highway; he took this route without objection on the part of his employer and in so doing violated no enforced rule; on Sundays he received pay for eleven hours which included the one which he was permitted to take for dinner; on the Sunday in question as he was thus going to dinner he received injuries causing death by falling from a trestle which was within the limits of the railroad yards in which yards he performed certain of his duties. The deceased on the occasion in question traveled more than half a mile from the yard where he stopped work before reaching the trestle where he fell, whereas it was a much shorter distance to the highway which he ordinarily used for this trip, and the route which he did take on this occasion before reaching the trestle crossed two streets which would have led him home. Held, that the findings of the specific circumstances which gave rise to the

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Points of counsel.

[225 N. Y.]

accident are to control rather than the general conclusion drawn from them by the commission, and that tested by the general character of the undertaking in which the deceased was engaged at the time of the accident, the latter did not arise in the course of or spring out of his employment.

Matter of McInerney v. B. & S. R. R. Corp., 184 App. Div. 917, reversed.

(Argued November 12, 1918; decided January 7, 1919.)

APPEAL, by promission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 7, 1918, unanimously affirming an award of the state industrial commission made under the Workmen's Compensation Law.

The facts, so far as material, are stated in the opinion.

Thomas R. Wheeler for appellant. The accident to claimant's husband did not arise out of and in the course of his employment; the claim should, therefore, have been dismissed. (Devoe v. New York State Railways, 218 N. Y. 318; McCabe v. Brooklyn Heights R. R. Co., 177 App. Div. 107; Bylow v. St. Regis Paper Co., 179 App. Div. 555; Ames v. N. Y. C. R. R., 178 App. Div. 324; Manor v. Pennington, 180 App. Div. 130; Gifford v. Patterson, 222 N. Y. 4; Murphy v. Ludlum Steel Co., 182 App. Div. 139; King v. State Ins. F. & S. O. Co., N. Y. L. J. Sept. 25, 1918; Reed v. Great Western Ry., 2 B. W. C. C. 109; Spooner v. Detroit Saturday Night Co., 187 Mich. 125; Bates v. Roberts, 224 N. Y. 126; Matter of Redner v. Faber & Son, 223 N. Y. 379; Hotaling v. S. O. Co., 6 S. D. Rep. 308; Peers v. De Carion & Co., 5 S. D. Rep. 425; McGuire v. B. H. R. R. Co., 10 S. D. Rep. 631; Sokal v. Clyde S. S. Co., 6 S. D. Rep. 339; Berg v. Great Lakes Dredge & Dock Co., 173 App. Div. 82; Pope v. Merritt Chapman Derrick & Wrecking Co., 177 App. Div. 69; Pierson v. Interborough Rapid Transit Co., 102 Misc. Rep. 130.)

Merton E. Lewis, Attorney-General (E. C. Aiken of counsel), for respondent. The accident to the deceased

[225 N. Y.]

Opinion, per НISCOCK, Ch. J.

[Jan.,

employee arose out of and in the course of his employment. (Gane v. N. H. Colliery Co., 2 B. W. C. C. 47; Mc Kee v. G. N. Ry. Co., 1 B. W. C. C. 165; Cremins v. Guest, Keen & Nettleford, 1 B. W. C. C. 160; Matter of Littler v. Fuller Co., 223 N. Y. 369; Redner v. Faber & Son, 223 N. Y. 379; Grieb v. Hammerle, 222 N. Y. 382; Di Paolo v. Crimmins Cont. Co., 219 N. Y. 38.)

HISCOCK, Ch. J. What we regard as the determinative facts which have been found in this case, aside from formal ones, are to the effect that the deceased workman was in the employ of defendant as a car inspector in one of its yards; that he was accustomed to go for his dinner to his home, which was not on the defendant's premises, on weekdays taking the highway and on Sundays walking on the railroad right of way in order to avoid exposing himself in his working clothes to the view of people on the highway; that he took this route" without objection" on the part of his employer and in so doing violated no enforced rule;" that on Sundays he received pay for eleven hours which included the one which he was permitted to take for dinner; that on the day in question, which was Sunday, as he was thus going to dinner he received injuries causing death by falling from a trestle which was "within the limits of the railroad yards in which yard he performed certain of his duties."

The Industrial Commission further found as a conclusion that the accident to deceased " arose out of and in the course of his employment," but since we have findings of the specific circumstances which gave rise to the accident, these are to control rather than the general conclusion drawn from them by the commission.

Tested by the general character of the undertaking in which the deceased was engaged at the time of the accident, the latter did not arise in the course of or spring out of his employment. Such a trip of an employee